Citation NR: 9631562
Decision Date: 11/06/96 Archive Date: 11/14/96
DOCKET NO. 93-20 314 ) DATE
)
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Cleveland, Ohio
THE ISSUE
Entitlement to an increased rating for low back strain with
neurological deficit, currently rated 40 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
J. F. Gussio, Associate Counsel
INTRODUCTION
The veteran served on active military duty from March 1966 to
February 1968.
The case was previously before the Board of Veterans' Appeals
(Board) and was remanded to the RO for further development in
August 1995. The veteran's claim for individual
unemployability was denied by the RO in May 1996. He has not
appealed this decision. The claim for a temporary total
disability rating was withdrawn at an August 1993 hearing.
CONTENTION OF APPELLANT ON APPEAL
The veteran contends that his service-connected lumbosacral
strain with neurological deficit has increased in severity
and warrants a higher evaluation. He claims that he
experiences increased low back pain and stiffness, numbness
of the lower extremities and limited range of motion of the
low back.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims file.
Based on its review of the relevant evidence in this matter,
and for the following reasons and bases, it is the decision
of the Board that the preponderance of the evidence is
against the claim for a rating in excess of 40 percent for
lumbosacral strain with neurological deficit.
FINDING OF FACT
The veteran's lumbosacral strain with neurological deficit is
no more than severe; pronounced intervertebral disc syndrome
is not shown.
CONCLUSION OF LAW
A rating in excess of 40 percent for a low back strain with
neurological deficit is not warranted. 38 U.S.C.A. §§ 1155,
5107(a) (West 1991 & Supp. 1995); 38 C.F.R. §§ 3.321, 4.1,
4.3, 4.7, 4.40, 4.59, and Part 4, Diagnostic Codes 5289,5292,
5293, 5295 (1995).
REASONS AND BASES FOR FINDING AND CONCLUSION
The veteran has submitted a well-grounded claim within the
meaning of 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1995).
That is, he has presented a claim that is plausible. As
previously noted, the case was remanded to the RO for further
development in August 1995. Additional treatment records
including a March 1996 VA examination have been associated
with the claims file. All requested development has been
completed by the RO to the extent possible. Accordingly, no
further development is warranted.
The evaluation of service-connected disabilities is based on
the average impairment of earning capacity they produce,
determined by considering current symptomatology in light of
applicable rating criteria. 38 U.S.C.A. § 1155.
The veteran was seen with low back complaints in service.
The RO initially established service connection for low back
syndrome, rated 10 percent, in June 1970. In January 1973,
the RO assigned a 20 percent disability rating for
lumbosacral strain. In March 1976, the rating was reduced to
10 percent. From March 1977 to October 1983, the veteran
underwent multiple VA examinations and was hospitalized at a
VA hospital. The RO thereafter increased the veteran's
disability rating to 20 percent. Between 1984 to 1988, the
veteran was treated on multiple occasions and underwent VA
examinations for low back pain. In April 1988, the RO
assigned a 60 percent evaluation for lumbosacral strain with
neurological deficit. In April 1990, the RO reduced the low
back strain with neurological deficit from 60 percent to 40
percent. In January 1991, the Board confirmed the 40 percent
rating.
On VA examination in March 1991, the veteran complained of
persistent pain in his low back. He reported taking
medication and wearing a TENS unit. He indicated he used a
cane to ambulate, but was able to walk well without the cane.
He dressed and undressed guarding the motions of his back.
He had a slight pelvic tilt. There was also a slight
dextrosclerosis of the thoracic and lumbar spine. He could
bend forward to 40 degrees, bend backward to 0 degrees, and
lateral bend to 10 degrees in each direction with complaint
of pain. The diagnosis was low back strain with neurological
deficit.
On VA neurological examination in March 1991, the examiner
reported that the veteran had diabetes mellitus with evidence
of peripheral neuropathy. He had diminished cutaneous
sensation in the feet and fingers, absent ankle jerks, and
diminished knee jerks. The examiner further reported that
the veteran had a lumbar strain without evidence of
radiculopathy. The examiner reported that it was possible
that the diabetic neuropathy had obscured somewhat any
evidence for radiculopathy in the lower lumbar segments.
VA outpatient treatment and hospital records from 1991 to
1993 reveal that the veteran received treatment and was
hospitalized on multiple occasions for various disabilities,
to include chronic back pain, diabetes mellitus with
peripheral neuropathy, hypertension and cardiovascular
disease.
On VA examination in June 1993, there were mild scoliosis to
the left and positive lumbar lordosis. There were no fixed
deformities. The musculature of the back was within normal
limits. The veteran had limitation of motion of the lumbar
spine with complaints of pain but no evidence of a
neurological involvement. There was no objective evidence of
pain. The diagnoses were chronic low back pain and
scoliosis/lordosis.
On VA peripheral nerve examination in June 1993, the veteran
had no pain with palpation or percussion over the spinous
processes. Motor examination revealed no fasciculation or
atrophy. Tone and strength were normal. There was decreased
sensation in the feet. Vibratory sense was normal at the
knees. Patellar reflexes were zero bilaterally with
reinforcement. Ankle jerks were zero bilaterally with
reinforcement. Final response was downgoing. His gait was
slightly wide based, but he was able to narrow his base
without difficulty. He was able to walk on his heels and
toes, but complained of pain. He was able to tandem walk.
Electromyographic (EMG) testing was consistent with diabetic
polyneuropathy. The impression was peripheral neuropathy
probably diabetic etiology.
On VA spine examination in February 1994, it was reported
that the veteran was in a wheelchair but was able to get out
of the wheelchair and stand without assistance. Clinical
evaluation of the lumbar spine revealed some flattening of
the normal lumbar curve. Range of motion of the lumbar spine
was as follows: Forward bending was to 40 degrees with a
complaint of severe pain; backward bending was to 0 degrees;
lateral flexion was to 15 degrees in each direction and
rotation was to 15 degrees. The diagnosis was degenerative
disc disease of the lumbar spine.
At the August 1993 hearing, the veteran testified that he had
increased pain and limitation of motion of the back; that he
wore a TENS unit and back brace; and that his daily
activities were severely limited as a result of his low back
disorder.
In October and November 1995, the veteran was hospitalized at
the VA for chronic low back pain with acute exacerbation,
diabetes mellitus, hypertension, chronic obstructive
pulmonary disease, dysthymia and extraforaminal disc
herniation, associated with chronic low back pain at the area
of lumbar vertebrae 3 and 4.
On VA orthopedic examination in March 1996, there was an
increase in the normal thoracic kyphosis. The veteran held
his head in a slightly forward position. There was
flattening and even slight reversal of the normal lumbar
curve. Range of motion of the lumbar spine was as follows:
forward flexion was to 30 degrees; backward bending was to 0
degrees; lateral bending was to 20 degrees in each direction
with a complaint of discomfort; and rotation was to 20
degrees. The diagnosis was low back strain with neurological
deficit and degenerative disc disease of the lumbar spine.
On VA neurological examination in March 1996, there was mild
generalized weakness, 4 plus to 5 minus, bilaterally in the
lower extremities. Straight leg raising caused significant
pain in the low back but no shooting pain down either leg was
found. Deep tendon reflexes were diminished but equal
symmetrically, with 1/4 at the knees and absent ankle jerks.
Toes were downgoing bilaterally. Rapid alternating movements
were equal bilaterally. There was no pronator drift.
Sensory examination was remarkable for diminished vibratory
sensation in the toes bilaterally. Pinprick was intact in
the feet but was diminished above the ankles. It improved
again at the midcalf bilaterally. The impressions were
diabetic peripheral neuropathy and chronic back pain due to
degenerative disc disease, with no evidence of significant
radiculopathy.
Arthritis, established by X-ray findings, is rated on the
basis of limitation of motion under the appropriate
diagnostic code for the specific joint involved. Limitation
of motion must be objectively confirmed by findings such as
swelling, muscle spasm or satisfactory evidence of painful
motion. 38 C.F.R. § 4.71a, Code 5003 (1995).
Severe limitation of motion of the lumbar spine warrants a 40
percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5292
(1995).
Where there is lumbosacral strain which is severe, with
listing of the whole spine to the opposite side, positive
Goldthwait's sign, marked limitation of forward bending in
the standing position, loss of lateral motion with
osteoarthritic changes, or narrowing or irregularity of joint
space, or some of the above with abnormal mobility on forced
motion a 40 percent evaluation is warranted. 38 C.F.R. Part
4, Diagnostic Code 5295.
A 40 percent evaluation is warranted for severe
intervertebral disc syndrome with recurring attacks with
intermittent relief. A 60 percent evaluation requires
pronounced intervertebral disc syndrome with persistent
symptoms compatible with sciatic neuropathy with
characteristic pain and demonstrable muscle spasm, absent
ankle jerk or other neurological findings appropriate to the
site of the diseased disc and little intermittent relief.
Code 5293.
The medical record fails to disclose the requisite
manifestations for an increased evaluation for the lumbar
disorder under any of the pertinent diagnostic codes. A
rating in excess of 40 percent under Code 5295 is not
possible because 40 percent is the maximum schedular rating
for lumbosacral strain. The 40 percent rating currently
assigned is the maximum rating for arthritis of the lumbar
spine in the absence of lumbar ankylosis in an unfavorable
position.. Codes 5289,5292. Since ankylosis is not shown, a
rating in excess of 40 percent on this basis is not
warranted.
For a rating higher than 40 percent under Code 5293,
neurological symptoms would have to be shown to be more than
severe. The record does not show pronounced intervertebral
disc syndrome with persistent symptoms compatible with
sciatic neuropathy, or other neurological findings
appropriate to the site of the diseased disc so as to warrant
the higher 60 percent evaluation for the veteran's low back
disorder under Diagnostic Code 5293. While absent ankle jerk
and other neurological findings were present in the lower
extremities, this was attributed to the veteran's peripheral
neuropathy due to diabetes mellitus. That disorder is not
service connected and its symptoms may not be considered in
rating the low back disorder. Any neurological findings that
have been been associated with lumbar disc disease are not
more than severe. Consequently, the preponderance of the
evidence is against the veteran's claim for a disability
rating in excess of 40 percent for his service-connected low
back disorder.
In making this determination, the Board has considered the
veteran’s testimony of record and is aware of his complaints
of pain and severe restriction of motion but the functional
limitations shown are encompassed by the 40 percent rating
currently in effect. While the veteran's testimony is
credible, its probative value is outweighed by the objective
findings which do not reflect symptoms compatible with
pronounced disc disease or ankylosis. Moreover, the evidence
does not suggest that the veteran's low back disability
presents such an exceptional or unusual disability picture as
would render impractical the application of the regular
schedular standards so as to warrant the assignment of an
extraschedular evaluation under 38 C.F.R. § 3.321(b)(1)
(1995). It is not shown that the low back disorder, of
itself, involves such factors as marked interference with
employment, frequent hospitalizations, etc.
ORDER
A rating in excess of 40 percent for lumbosacral strain with
neurological deficit is denied.
GEORGE R. SENYK
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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